Why Former Employees Make Better Witnesses Than Current Employees

When plaintiff attorneys think about witnesses inside a defendant company, they often start with the people who work there now. That makes sense on paper: current employees are easy to identify and can be noticed for deposition. In practice, they're often the least helpful witnesses you'll talk to. Former employees are frequently far more valuable.

Current employees have every reason to stay quiet

Someone who still works for the defendant depends on that company for a paycheck, health insurance, and their next promotion. Even an honest employee may shade their answers, remember less than they know, or avoid volunteering anything that might get back to their manager. That isn't necessarily dishonesty. It's human nature.

Former employees don't carry the same pressure. Many left on their own terms and are willing to describe what they saw. Some left precisely because they disagreed with how things were run.

Current employees are often off-limits

Under ABA Model Rule 4.2 and state equivalents, plaintiff counsel generally can't talk informally with certain current employees of a represented company, including those who supervise or regularly consult with the company's lawyers about the matter, can bind the company, or whose conduct may be imputed to it. In practice, that often means the current employees who know the most are the ones you can only reach through formal discovery.

Former employees are treated differently. In most jurisdictions, you can contact them directly without defense counsel's consent, subject to important limits around privilege and witnesses who have their own lawyers. Our post on ethics rules for contacting former employees covers those limits.

Current employees have been prepped

By the time you depose a current employee, they've usually met with defense counsel, reviewed documents, and been walked through the questions they're likely to face. Their testimony is often careful and consistent with the company's position. A former employee you reach through an informal interview hasn't been through that process, and you get to hear their account in their own words.

Former employees can speak more freely about the culture

Many of the most important facts in a case aren't in any document. They're about how things really worked: whether staffing was adequate, whether safety concerns were welcomed or punished, and whether the written policy matched what managers actually expected. Former employees are often more willing to describe the gap between policy and practice.

They can point you to the right documents and people

Even when a former employee isn't a trial witness, they can be enormously useful in discovery. They know what reports were generated, what systems were used, which emails went to whom, and which managers made the decisions at issue. That lets you write narrower, harder-to-dodge document requests and pick the right deponents.

A word of caution

Former employees aren't automatically credible or helpful. Some left on bad terms and may have an axe to grind. Some knew less than their job title suggests. That's why vetting matters: confirming what each person actually saw, how they know it, and whether their account holds up against the documents.

Making it practical

The challenge with former employees is finding them. They're scattered, they've changed numbers, and the defendant isn't going to hand you a list. Stratejic Relationships builds that list for you. Our Ex-Employee List (The EEL) gives plaintiff firms a defendant's former employees with names, job titles, tenures, and active confirmed phone numbers, and our vetting process narrows it to the witnesses most likely to help.

Have a case where the inside story matters? Contact Stratejic to talk through your defendant.